Barlow Clowes International Ltd and Others v Henwood
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice Moore-Bick,Lord Justice Waller |
| Judgment Date | 23 May 2008 |
| Neutral Citation | [2008] EWCA Civ 577 |
| Docket Number | Case No: A2/2007/1757 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 May 2008 |
[2008] EWCA Civ 577
Lord Justice Waller —vice President Of
The Court Of Appeal, Civil Division
Lady Justice Arden and
Lord Justice Moore-bick
Case No: A2/2007/1757
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION (BANKRUPTCY COURT)
EVANS-LOMBE J
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Geoffrey Vos QC and Mr Andrew Ayres (instructed by Messrs Clifford Chance LLP) for the Appellants
Mr Anthony White QC and Miss Samantha Knights (instructed by Messrs Alan Taylor & Co) for the Respondent
Hearing dates: 5–6 February 2008
This is an appeal against the order of Evans-Lombe J dated 10 July 2007. The question that the judge had to decide was whether Mr Henwood was domiciled in England and Wales on 19 December 2005, being the date on which the Appellants presented a bankruptcy petition against him. It is common ground that, by virtue of s 265 of the Insolvency Act 1986, the courts of England and Wales have no jurisdiction to make a bankruptcy order against him unless he was domiciled here on that date.
The bankruptcy petition is based on a judgment debt. In 2001 Mr Henwood was found liable by the High Court of the Isle of Man (“the IOM”) to the Appellants, Barlow Clowes International Limited (in liquidation) (“BCI”) and the receivers and managers of certain investment portfolios formerly promoted by BCI in damages for having dishonestly assisted in the disposal of monies stolen from BCI. The Privy Council upheld the judgment in October 2005. On 10 November 2005 a statutory demand for the judgment debt, which with interest by then amounted to over £9m, was served on Mr Henwood, pursuant to an order for substituted service. The bankruptcy petition was presented on 19 December 2005. On 16 March 2006 Mr Henwood applied for a declaration that the court had no jurisdiction to hear the bankruptcy petition on the grounds that he was not domiciled in England and Wales. Evans-Lombe J held that Mr Henwood had acquired a domicile of choice in Mauritius and that he was not domiciled in England and Wales on 19 December 2005. The judge made a declaration accordingly, and dismissed the bankruptcy petition. The appellants appeal from that order.
In this judgment, I will start by considering the basis on which a judge's findings of fact can be reviewed on appeal. I will next set out the basic principles of the law of domicile. I will then summarise the facts as found by the judge and his judgment. After that, I will outline the parties' submissions. I will then summarise my conclusions and then amplify those conclusions by setting out my detailed reasons.
The judge's ultimate conclusion as to domicile was based on the inferences that he drew from the evidence. Mr Henwood, in resisting this appeal, contends that the circumstances in which this court can review the judge's factual findings are limited. The law on this point is set out in a well-known passage from the judgment of Clarke LJ in Assicuriazioni Generali SpA. v Arab Insurance Group [2003] 1 WLR 577 at [14] to [17]:
“[14] The approach of the court to any particular case will depend upon the nature of the issues and the kind of case determined by the judge. This has been recognised recently in, for example, Todd v Adam [2002] EWCA Civ 509, [2002] 2 All ER (Comm) 97 and REEF Trade Mark v Bessant (t/a REEF) [2002] EWCA Civ 763, [2003] RPC 101. In some cases the trial judge will have reached conclusions of primary fact based almost entirely upon the view which he formed of the oral evidence of the witnesses. In most cases, however, the position is more complex. In many such cases the judge will have reached his conclusions of primary fact as a result partly of the view he formed of the oral evidence and partly from an analysis of the documents. In other such cases, the judge will have made findings of primary fact based entirely or almost entirely on the documents. Some findings of primary fact will be the result of direct evidence, whereas others will depend upon inference from direct evidence of such facts.
[15] In appeals against conclusions of primary fact the approach of an appellate court will depend upon the weight to be attached to the findings of the judge and that weight will depend upon the extent to which, as the trial judge, the judge has an advantage over the appellate court; the greater that advantage the more reluctant the appellate court should be to interfere. As I see it, that was the approach of the Court of Appeal on a “rehearing” under the RSC and should be its approach on a “review” under the CPR.
[16] Some conclusions of fact are, however, not conclusions of primary fact of the kind to which I have just referred. They involve an assessment of a number of different factors which have to be weighed against each other. This is sometimes called an evaluation of the facts and is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and, in my opinion, appellate courts should approach them in a similar way.
[17] In Todd v Adam, where the question was whether a contract of service existed, Mance LJ [2002] 2 All ER (Comm) 97 at [ 129] drew a distinction between challenges to conclusions of primary fact or inferences from those facts and an evaluation of those facts, as follows:
“With regard to an appeal to this court (which would never have involved a complete rehearing in that sense), the language of 'review' may be said to fit most easily into the context of an appeal against the exercise of a discretion, or an appeal where the court of appeal is essentially concerned with the correctness of an exercise of evaluation or judgment—such as a decision by a lower court whether, weighing all relevant factors, a contract of service existed. However, the references in CPR 52.11(3) and (4) to the power of an appellate court to allow an appeal where the decision below was 'wrong' and to 'draw any inference of fact which it considers justified on the evidence' indicate that there are other contexts in which the court of appeal must, as previously, make up its own mind as to the correctness or otherwise of a decision, even on matters of fact, by a lower court. Where the correctness of a finding of primary fact or of inference is in issue, it cannot be a matter of simple discretion how an appellate court approaches the matter. Once the appellant has shown a real prospect (justifying permission to appeal) that a finding or inference is wrong, the role of an appellate court is to determine whether or not this is so, giving full weight of course to the advantages enjoyed by any judge of first instance who has heard oral evidence. In the present case, therefore, I consider that (a) it is for us if necessary to make up our own mind about the correctness or otherwise of any findings of primary fact or inferences from primary fact that the judge made or drew and the claimants challenge, while (b) reminding ourselves that, so far as the appeal raises issues of judgment on unchallenged primary findings and inferences, this court ought not to interfere unless it is satisfied that the judge's conclusion lay outside the bounds within which reasonable disagreement is possible. In relation to (a) we must, as stated, bear in mind the important and well-recognised reluctance of this court to interfere with a trial judge on any finding of primary fact based on the credibility or reliability of oral evidence. In the present case, however, while there was oral evidence, its content was largely uncontentious.”
This passage was recently approved by the House of Lords in Datec Electronic Holdings Ltd v United Parcel Service Ltd [2007] 1 WLR 1325 at [46]. I do not need to set out those passages.
Clarke LJ held that the approach of the appellate tribunal to findings of fact would depend on the extent to which the judge had had an advantage over the appellate court. So, where findings turn wholly or substantially on oral evidence given by witnesses at trial, an appellate court will be slow to interfere. Thus there is in general a greater latitude where the findings in issue on an appeal are not primary facts but inferences from the proved facts. Applying that to this case it is unlikely that this court could go behind the judge's finding that Mr Henwood was determined to resist paying the debt due to the appellants (as found by the judge in [56] of his judgment). The inference as to whether Mr Henwood intended to stay permanently or indefinitely in Mauritius is based solely on the primary facts proved and for this purpose the judge is unlikely to have an advantage over this court. If an appellate court considers that the judge has come to a conclusion that is plainly wrong and outside the ambit within which reasonable disagreement is possible, it is bound to intervene, even though the question is one of fact. This standard does not apply if the judge has misdirected himself in law as to the correct approach to the evidence. If he has made an error of law in this way, there is no further requirement that the judge's finding should be plainly wrong or outside the ambit within which reasonable disagreement is possible.
As is pointed out on behalf of Mr Henwood, the fact that a finding that he is domiciled overseas enables him to avoid bankruptcy proceedings is not a reason for finding...
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